This is
a case where, if the allegations are true, a petty complaint
from a neighbor led to a grossly disproportionate response by
police, culminating in officers entering a family's home
and arresting its owner for doing nothing more than
attempting to videotape the officers' over-reaction on
her own property. It is a claim which can only be described
as having particular resonance when viewed against the
backdrop of recent events nationally, where videotapes by
citizens have proven to be indispensable in bringing to light
instances where police unfortunately misused their power. The
facts remain unproven, but Defendants here seek to prevent
Plaintiffs from even making their case by claiming that they
are entitled to qualified immunity. When viewed against the
allegations of this Complaint, the assertion of that defense,
which would terminate this case at its outset, brings into
sharp focus the question of whether the doctrine of qualified
immunity is being invoked more than is warranted. Suffice it
to say that dismissing this Complaint at the pleading stage
given the record before me would risk rendering the Bill of
Rights meaningless, at least as it applies to the sanctity of
a citizen's home. Accordingly, the Motion to Dismiss has
been denied.

Page 460

I.
Facts Alleged in Plaintiffs' Complaint

Plaintiff
Kia Gaymon is a 38-year-old social work supervisor for a
nonprofit agency. She has a Masters of Social Work from
Temple University. Her husband, Plaintiff Michael Gaymon, is
a 35-year-old technician with a telecommunications utility
company, in addition to currently completing his college
education. They have a 21-year-old daughter, Plaintiff
Sanshuray Purnell, and a 10-year-old son. They own a home in
Collingdale, Pennsylvania, where they have lived with their
children since March 2007.

On
February 22, 2014, Defendant Officers Carl White and William
Eckert went to Plaintiffs' home in response to a call
made by their next-door neighbor, who allegedly complained
that Mr. Gaymon's mother (a guest in their home at the
time) had parked her car so that the front tire was on the
curb in front of the neighbor's house. Upon arriving, the
Defendant officers confronted Plaintiffs as they were leaving
for a family outing. According to the Complaint, Defendant
White began yelling at them in an aggressive manner, asking
who spit at their neighbor.

Plaintiffs
Mrs. and Mr. Gaymon explained that they had done nothing
wrong, and that their neighbor falsely accused them of
spitting at her. Defendant White then allegedly approached
Mr. Gaymon in an antagonistic way, placing his face within
inches of Mr. Gaymon's face while yelling at him. Mrs.
Gaymon, concerned about the officer's aggressive conduct,
took out her cell phone and began making a video recording.
Officer White approached Mrs. Gaymon, at which point she
moved inside her home, continuing to video White by either
leaning around the storm door or through the window in the
door.

According
to the Complaint, White ordered Mrs. Gaymon to stop
videotaping him, and declared that her doing so violated
Pennsylvania's wiretap statute. Her husband and daughter,
who were standing in front of their home, told White he was
incorrect, and Mrs. Gaymon had a right to record. White told
Mrs. Gaymon that if she did not stop taping him, he would
enter her house, seize her phone, and arrest her. Mrs. Gaymon
told White he was not permitted to enter her home. He walked
up the stairs to the front entrance, but before entering, he
grabbed her daughter Sanshuray, handcuffed her, placed her
under arrest, and threatened to deploy his Taser against her.
Officer Eckert then removed Sanshuray from the scene.

Officer
White is next alleged to have entered Plaintiffs' home
and ordered Mrs. Gaymon again to stop videotaping him. Mrs.
and Mr. Gaymon reiterated that they did not consent to his
entry, and he was not permitted to be in their home. Ignoring
them, Defendant White allegedly grabbed Mrs. Gaymon, pushed
her up against the wall, and held his Taser to her chest. At
this time, Defendant Officers Eckert and others identified as
" John Does" joined Officer White and placed Mrs.
Gaymon under arrest. They removed Mrs. Gaymon from her home,
placed her in a separate police vehicle from her daughter,
and drove both women to the Collingdale Police Station.

The
officers released Mrs. Gaymon and Sanshuray from police
custody later that day, stating they would receive citations
in the mail for " disorderly conduct" under 18 Pa.
Cons. Stat. § 5503, which they did. As a result, they
retained counsel to represent them during their court
proceeding. On May 22, 2014, Mrs. Gaymon and Sanshuray
appeared before a Magisterial District Justice. After hearing
testimony from Defendant White, the Magisterial District
Justice dismissed all charges.

Page 461

Plaintiffs contend that they never engaged in wrongdoing of
any kind, and Defendants never had probable cause to believe
they engaged in disorderly conduct or committed any other
criminal violation. They further plead that the criminal
proceedings were maliciously initiated. In addition,
Plaintiffs claim that Defendants did not have legal cause to
enter their home, and the Defendant officers' acted in
retaliation for Plaintiffs' engaging in First Amendment
activity, including disagreeing with Defendant White and
protesting the officers' entry into their home.

Defendants
moved to dismiss Plaintiffs' Complaint, arguing that the
Defendant officers are entitled to qualified immunity. In
their written motion, Defendants argued that whether Mrs.
Gaymon's conduct in recording Officer White violated the
Pennsylvania Wiretap Act was not clearly established as of
February 22, 2014, which would have resulted in dismissal of
only Mrs. Gaymon's unlawful arrest and malicious
prosecution claims.[1]

At oral
argument, defense counsel took the bold position that
qualified immunity should be extended to shield the Defendant
officers from all liability, including the constitutional
claims alleged by Ms. Purnell and Mr. Gaymon. Defendants
sought to redefine the focus of the qualified immunity
analysis to whether there was a clearly established "
First Amendment right to record" police officers
performing their official duties at the time of the alleged
incident in 2014. I will analyze these distinct arguments
separately, but the result remains the same regardless of how
one frames the issue. Under these circumstances, qualified
immunity provides no defense.

does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" George, 738 F.3d at 571-72 (citing
Harlow v. Fitzgerald,457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982)). The doctrine is intended to
give officers " breathing room to make reasonable but
mistaken judgments about open legal questions."
Id. Consequently, " [a]ny claim of qualified
immunity must be resolved at the earliest possible stage of
the litigation." Miller v. Clinton County, 544
F.3d 542, 547 (3d Cir. 2008). Defendants emphasize that under
a proper qualified immunity analysis, the doctrine protects
" all but the plainly incompetent or those who knowingly
violate the law." Id. at 572 (citing
Ashcroft v. al-Kidd,563 U.S. 731, 131 S.Ct. 2074,
2085, 179 L.Ed.2d 1149 (2011)).

To
overcome the defense of qualified immunity, Plaintiffs must
allege facts showing that the Defendant officers' conduct
(1) " violated a statutory or constitutional right, and
(2) that the right was 'clearly established' at the
time of the challenged conduct." George, 738
F.3d at 572 (quoting al-Kidd, 131 S.Ct. at 2080).
Following Pearson v. Callahan,555 U.S. 223, 236,
129 S.Ct. 808, 172 L.Ed.2d 565 (2009), I do not need to
undertake the two-part inquiry in sequential order. Here,
given the conduct of the police--following Mrs. Gaymon into
her home over her protest and charging her for videotaping on
her own property--I will focus on the second part of the test
concerning whether the law was clearly established.

Defendants
bear the burden of establishing their entitlement to the
affirmative defense of qualified immunity. See Halsey v.
Pfeiffer,750 F.3d 273, 288 (3d Cir. 2014). Thus, in
light of Defendants' arguments, to succeed under either
theory, they must prove that the statutory or constitutional
right in question was not clearly established at the time of
the incident. For purposes of this inquiry, the "
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Schneyder v. Smith, 653
F.3d 313, 329 (3d Cir. 2011) (citing Anderson v.
Creighton,483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987)). In evaluating the state of the law in 2014, the
" salient question" is whether the officers had
" fair warning" that their conduct was
unconstitutional. See Hope v. Pelzer,536 U.S. 730,
741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

Of
particular significance here:

[t]o be established clearly, however, there is no need that
" the very action in question [have] previously been
held unlawful." Wilson v. Layne,526 U.S. 603,
615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The
unconstitutionality of outrageous conduct obviously will be
unconstitutional, this being the reason, as Judge Posner has
said, that " [t]he easiest cases don't even
arise." K.H. v. Morgan,914 F.2d 846, 851 (7th
Cir. 1990). But even as to action less than an outrage,
" officials can still be on notice that their conduct
violates established law . . . in novel factual
circumstances." Hope v. Pelzer, [536 U.S. at
741].

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